Benjamin Douglas has posted Antisocial Justice: Pathologies of the Standing Doctrine (Charleston Law Review (Forthcoming)) on SSRN. Here is the abstract:
The standing doctrine envisions an ideal plaintiff who cares about the individual rather than the collective, concrete interests rather than social values, and the short-term rather than the long-term. Far from being a neutral procedural device to mandate judicial restraint, the standing requirement has proven a powerful tool to enshrine neoliberal values into law.
Neither the Constitution nor history mandates the standing doctrine. Early common law allowed plaintiffs to sue on behalf of the public in several contexts. Even after the standing doctrine developed in the twentieth century, courts often honored expansive statutory rights of action and sometimes applied collective principles to the Constitution.
Since the neoliberal turn in the 1970s, however, standing restrictions have played a crucial role in turning the courts into capital’s playground. I examine three fields where standing has facilitated neoliberal reinterpretations of law.
First, I discuss Spokeo v. Robins, a 2016 Supreme Court case that ruled that a plaintiff could not sue under the Fair Credit Reporting Act even when a corporation publicly spread misinformation about him. This holding trivialized individuals’ non-monetary interest in their own privacy, weakened class actions, and undermined a Congressionally conferred private right of action.
Second, I discuss the offshoot doctrine of antitrust standing, which is part of a broader campaign to erode antitrust enforcement. Antitrust standing reframes the substantive questions of antitrust to focus on the benefit to the plaintiff. This allows courts to sidestep questions about how concentrated capital threatens democracy, or how private rights of action deter market power abuses, because those questions focus on the social aims of the law—things that do not concern a neoliberal plaintiff.
Third, I discuss environmental law. We cannot understand the global environmental crisis we are in if we look at people as isolated atoms, concerned only with their short-term interests. Nevertheless, that is what the law of standing mandates. Standing has been at the heart of some of the most important legal battles over the environment, from 1973’s U.S. v. SCRAP to 2017’s Juliana v. U.S.